Appeals court rules Indiana can’t ban sex offenders from Facebook

Social media ban is too sweeping to pass muster under the First Amendment.

Today, a federal appeals court struck down a 2008 Indiana law that banned registered sex offenders from using social media sites such as Twitter and Facebook.

The challenge was brought by an anonymous Hoosier who is on the state's sex offender registry as a result of a 2000 conviction for child exploitation. When the Indiana legislature passed a law banning him from using social media sites, he brought a legal challenge arguing the law violated his First Amendment rights. A lower court judge rejected his argument. But on Wednesday, the United States Court of Appeals for the Seventh Circuit overruled his decision.

"Illicit communication comprises a minuscule subset of the universe of social network activity," wrote a unanimous three-judge panel. "As such, the Indiana law targets substantially more activity than the evil it seeks to redress."

That's a problem because under Supreme Court precedents, regulations that target speech must be "narrowly tailored" to achieve a significant government interest. While deterring sexual exploitation of minors is obviously a legitimate government interest, the court found a total ban on accessing social media sites was too broad to pass muster.

The Seventh Circuit's ruling could influence pending litigation in San Francisco over a California initiative that requires sex offenders to provide the government with a list of their social media identifiers. Earlier this month, a federal judge issued a preliminary injunction against the law. While decisions of the Seventh Circuit are not binding in California courts, Wednesday's ruling is likely to be cited in future litigation over the California measure.

Promoted Comments

As a registered sex offender in NC (for downloading some porn of high schoolers when I was 19), I'm glad to see at least some common sense is being applied. In NC, it's currently a felony if I create a Facebook account (or any account on a social networking website accessed by minors...I won't go into how poorly and ill-defined this law is). This ruling hasn't been applied to NC yet as far as I know. As danstl states, even if the laws are overtuned, I still can't technically make a Facebook account, as it's against Facebook's policy, the difference being though my account will still get deleted, I just can't be charged with a criminal offense for doing so. Also note, this does not affect sex offenders on probation/parole, as their access can still be restricted by their parole officer or judge. Even still, the laws still have a long way to go before they make any sense.

For example, even though I can't live within 1,000 feet of a school (blanket law), due to my offense being low-level enough, I can technically be on school property (that law is reserved only physical sex offenses), how dumb is that?

Regardless, I doubt I'll ever get back on Facebook (I was last on it in 2009). Sitting back on the sidelines, I've seen how stupid that website really is.

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

Also, was this all offenders. A lot of people on those lists, as I understand it, did nothing to a minor and what they did do doesn't lead me to believe they have any interest in children. That's usually what bothers me the most about these laws. It seems like they wrap "sex offender" into one term and then write laws as if all of them did the worst possible thing that could get you on the list.

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

Registered sex offenders and those convicted of violent crimes are not eligible for Membership.

But that is Facebook's (and others) own choice to keep them out, the same way they can ban you for being an asshole, nothing to do with the law mandating that they not have access. There is a big difference between a law mandating it and the company itself enforcing it voluntarily.

The big thing here is exactly how they would define "social media", which could balloon enormously to include effectively every site that primarily utilize user generated content, or even any site that utilize user generated content and/or interaction in any way.

As a registered sex offender in NC (for downloading some porn of high schoolers when I was 19), I'm glad to see at least some common sense is being applied. In NC, it's currently a felony if I create a Facebook account (or any account on a social networking website accessed by minors...I won't go into how poorly and ill-defined this law is). This ruling hasn't been applied to NC yet as far as I know. As danstl states, even if the laws are overtuned, I still can't technically make a Facebook account, as it's against Facebook's policy, the difference being though my account will still get deleted, I just can't be charged with a criminal offense for doing so. Also note, this does not affect sex offenders on probation/parole, as their access can still be restricted by their parole officer or judge. Even still, the laws still have a long way to go before they make any sense.

For example, even though I can't live within 1,000 feet of a school (blanket law), due to my offense being low-level enough, I can technically be on school property (that law is reserved only physical sex offenses), how dumb is that?

Regardless, I doubt I'll ever get back on Facebook (I was last on it in 2009). Sitting back on the sidelines, I've seen how stupid that website really is.

I understand the basic motivation behind these sorts of laws, but I don't think the lawmakers really think them through.

When people get out of jail/prison, they need to reintegrate with society, not be prohibited from public forums or banned from computer, email, etc. These laws make it much more difficult to communicate with family or prospective employers.

I understand the basic motivation behind these sorts of laws, but I don't think the lawmakers really think them through.

Sure they do. They're about pandering for votes. When "some ivory tower DC court" strikes it down, they can just say "Washington just doesn't understand Indiana's heartland values". The lawmaker got everything he/she wanted out of the law.

Good. I'm all for keeping child molesters or people who rape other people off some social media services, or monitoring any interaction with the targeted group of their conviction... but sex-ofender laws are crazy and crazy vague.

It's just too broad and all-encompassing... it needs to be way more granular and probably get rid of some of the classification: like underage boys being convicted of sex crimes for distributing nude photos of themselves to other minors, or public urination, and things like that. Or crazy laws like the one in Canada where you can get charged of having child porn for having anime and manga with drawings that kinda look underage.

So sex offenders still can not legally use facebook in any state...[/quote]I don't think it is illegal to violate any ToS.

Because Facebook's ToS is not the law. Not yet, anyway.[/quote]

Doesn't the Computer Fraud and Abuse Act make violating a site's TOS into a federal offense? Isn't this the whole reason the DOJ was able to move forward with prosecuting Aaron Swartz despise JSTOR dropping the civil suit?

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

Not precisely. The law has nothing whatsoever to do with whether you can sign up with Facebook. It is a violation of their contract with Facebook, which may subject them to charges under the CFAA but even that is doubtful lately. That does not rise to "illegal activity", though.

When people get out of jail/prison, they need to reintegrate with society, not be prohibited from public forums or banned from computer, email, etc. These laws make it much more difficult to communicate with family or prospective employers.

This is something I think we need to consider more. Hell, in Washington State, felons are permanently barred from voting, regardless of whether they paid full restitution and so forth. We've marginalized a huge segment of our population. When I think about the disproportionate number of minorities that are felons, it really makes me sick. Felony convictions are serious, yes. They should not be an automatic life sentence from participating in society, however.

Doesn't the Computer Fraud and Abuse Act make violating a site's TOS into a federal offense? Isn't this the whole reason the DOJ was able to move forward with prosecuting Aaron Swartz despise JSTOR dropping the civil suit?

No, the law itself does not do so. Case law does, which means some judges have found that to be the case. There is, IIRC, a Circuit split as to this issue. Considering the brouhaha around Aaron's story, though, I seriously doubt anyone would charge someone with that offense until things settle down.

Also, was this all offenders. A lot of people on those lists, as I understand it, did nothing to a minor and what they did do doesn't lead me to believe they have any interest in children. That's usually what bothers me the most about these laws. It seems like they wrap "sex offender" into one term and then write laws as if all of them did the worst possible thing that could get you on the list.

Of course, because no legislator is going to stand up and say "I'm going to vote against this law because it's too hard on such-and-such category of offenders." There's no upside for a legislator in pushing for a law like that to be "fair".

Doesn't the Computer Fraud and Abuse Act make violating a site's TOS into a federal offense? Isn't this the whole reason the DOJ was able to move forward with prosecuting Aaron Swartz despise JSTOR dropping the civil suit?

No, the law itself does not do so. Case law does, which means some judges have found that to be the case. There is, IIRC, a Circuit split as to this issue. Considering the brouhaha around Aaron's story, though, I seriously doubt anyone would charge someone with that offense until things settle down.

Edit: I messed up the quote tags

Aaron wasn't charged with violating a TOS. IIRC, they reference the TOS only in relation to making the case that Aaron knew the site owner didn't want him doing what he was doing. Basically, they were using the TOS as evidence of intent, not as evidence of action.

I understand the basic motivation behind these sorts of laws, but I don't think the lawmakers really think them through.

When people get out of jail/prison, they need to reintegrate with society, not be prohibited from public forums or banned from computer, email, etc. These laws make it much more difficult to communicate with family or prospective employers.

This is what I was coming here to say exactly. Once you have done the time you have supposedly paid your debt back to society. Then we continue to punish you some more because we decided it wasn't enough and this is why our country's crime problem is what it is. You become branded for life no matter the charge life is now harder for you IMO anyways. And your debt to society will never be paid off.

Supposedly when you are sent to prison you are being rehabilitated to rejoin society but apparently that is not the case.

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

But that is Facebook's (and others) own choice to keep them out, the same way they can ban you for being an asshole, nothing to do with the law mandating that they not have access. There is a big difference between a law mandating it and the company itself enforcing it voluntarily.

The big thing here is exactly how they would define "social media", which could balloon enormously to include effectively every site that primarily utilize user generated content, or even any site that utilize user generated content and/or interaction in any way.

When people get out of jail/prison, they need to reintegrate with society, not be prohibited from public forums or banned from computer, email, etc. These laws make it much more difficult to communicate with family or prospective employers.

This is something I think we need to consider more. Hell, in Washington State, felons are permanently barred from voting, regardless of whether they paid full restitution and so forth. We've marginalized a huge segment of our population. When I think about the disproportionate number of minorities that are felons, it really makes me sick. Felony convictions are serious, yes. They should not be an automatic life sentence from participating in society, however.

This is another thing I've touched on in previous articles.

If someone's on parole, I have less of an issue with internet monitoring or restrictions. Basically they're still being punished, but it's no longer necessary to isolate them from society for the general good.

But if they're finished their sentence, either served their time or had it commuted, then they should be free and clear. If you can't trust 'em in society, you shouldn't have released them in the first place. I'm OK with reporting priors; it's useful information for prospective employers. You probably don't want an arsonist working at a match factory...

For the people saying it violates Facebook's policy for Sex Offenders to have accounts, I believe there was a federal court ruling awhile back stating Facebook couldn't ban sex offenders from using Facebook because it prohibits freedom of speech/expression on a popular social medium that's become a part of our "everyday lives".

BTW I am a registered sex offender...google my username to see comments about my story, but I'm appealing my conviction due the fact the female in the SINGLE video charged and convicted on in Michigan, i was able to discover and recently identify, was in FACT 18 years old at the time of the recording of the amateur video distributed on the internet. I had no proof back in 2006, but Grand Traverse County officials charged me back then for possession of child sexually abusive material relating to this one video along with cyberstalking for making contact with a minor after she blocked me on AIM and I had contacted her on a different screenname. They threw 23 years of charges at me back then.

As a registered sex offender in NC (for downloading some porn of high schoolers when I was 19), I'm glad to see at least some common sense is being applied. In NC, it's currently a felony if I create a Facebook account (or any account on a social networking website accessed by minors...I won't go into how poorly and ill-defined this law is). This ruling hasn't been applied to NC yet as far as I know. As danstl states, even if the laws are overtuned, I still can't technically make a Facebook account, as it's against Facebook's policy, the difference being though my account will still get deleted, I just can't be charged with a criminal offense for doing so. Also note, this does not affect sex offenders on probation/parole, as their access can still be restricted by their parole officer or judge. Even still, the laws still have a long way to go before they make any sense.

For example, even though I can't live within 1,000 feet of a school (blanket law), due to my offense being low-level enough, I can technically be on school property (that law is reserved only physical sex offenses), how dumb is that?

Regardless, I doubt I'll ever get back on Facebook (I was last on it in 2009). Sitting back on the sidelines, I've seen how stupid that website really is.

I wonder, is Ars Technica's comments area part of a "social networking" website? Because that term seems dying for some up for re-election prosecutor to stretch it to breaking point.

I understand the basic motivation behind these sorts of laws, but I don't think the lawmakers really think them through.

When people get out of jail/prison, they need to reintegrate with society, not be prohibited from public forums or banned from computer, email, etc. These laws make it much more difficult to communicate with family or prospective employers.

This is what I was coming here to say exactly. Once you have done the time you have supposedly paid your debt back to society. Then we continue to punish you some more because we decided it wasn't enough and this is why our country's crime problem is what it is. You become branded for life no matter the charge life is now harder for you IMO anyways. And your debt to society will never be paid off.

Supposedly when you are sent to prison you are being rehabilitated to rejoin society but apparently that is not the case.

All that "paid your debts" stuff is just the usual fluff to keep people thinking they've got real rights. The system is designed to ensure the highest recidivism possible so the prison-industrial complex can continue to thrive. What better way to force you back in to crime ( or for the unfortunates who really were innocent but were railroaded into prison ) than to set it up so every possible avenue of putting your life back together is closed to you.

Much like others who mention their entrapment in the system, I've got a friend that was in the wrong place at the wrong time. He was buying a bag of weed from some people he dealt with maybe once or twice. Little did he know they were selling Cocaine and the day he was there, the place was raided. He was swept up with everyone else and got 5 years in the State prison. He was 18 years old. He's 40 now and despite going back to College, getting a degree, becoming a family man, etc. its dogged him his whole life. After 20 years of having doors closed in his face, he got lucky and through a friend got a good job a couple years ago, at last.

There are many others who weren't so lucky and through desperation, depression, and eventually despair, end up back in prison because they have no other options.

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

Registered sex offenders and those convicted of violent crimes are not eligible for Membership.

Well, Facebook can restrict it;s membership in many ways, the issue here is a GOVERNMENT can't do so on facebook's behalf, when the issue is poorly targeted or simply too broad as this was.

Also, facebook may state that, but it is currently against federal law to discriminate based on criminal background except in certain cases (and this isn;t one), so it may come to pass that facebook's own ToS clause could subject them to civil suit now that this ruling has come through.

Granted, I am certainly no fan of sex offendors, especially violent ones or those who offend against children, basically have ANY open rights without extensive and invasive ongoing activity monitoring, but such broad and poorly thought out (and barely enforcible anyway) rules don;t help anyone. If it was up to me certain classes of sex offenders would simply be locked up in phyciatric prisons permanantly and given the option to choose a death scentence instead, but that's just me... (I feel the same for anyone who comits 3 violent felonies in their lifetime). This is of course a more passive measure than the idea I used to carry for sex offenders: castration with a hemp rope by action of sawing motion.

I understand the basic motivation behind these sorts of laws, but I don't think the lawmakers really think them through.

When people get out of jail/prison, they need to reintegrate with society, not be prohibited from public forums or banned from computer, email, etc. These laws make it much more difficult to communicate with family or prospective employers.

This is what I was coming here to say exactly. Once you have done the time you have supposedly paid your debt back to society. Then we continue to punish you some more because we decided it wasn't enough and this is why our country's crime problem is what it is. You become branded for life no matter the charge life is now harder for you IMO anyways. And your debt to society will never be paid off.

Supposedly when you are sent to prison you are being rehabilitated to rejoin society but apparently that is not the case.

Who said your "time" is solely inclusive of guarded incarceration??? Your debt may be paid in fine and removal from society, but that's only one PHASE of your punishment. Parole is a natural extension of that imprisonment, and some of your rights are further restricted during that time, and some of your rights are remomed permanatly for many offences.

Certain crimes are not impulsive or situational, they're based in psychological disorders and have extremely high probability of being repeated. The purpose of imprisonment isn't simply the punishment, it's supposed to reporm you, but we know MANY conditions simply cannot be reformed adequately, or at all, and others we can't really tell. Threat of repeat punishment is not enough to stop some people either. It can take decades of psychotherapy to even make a dent in some social issues, and that's not something the state is willing to pay for, and even during that time we need to ensure the public is safe without the ongoing costs of imprisonment.

I could understand (judicially) targetted restrictions. E.g. the dude is a kiddie porn watcher, so he's banned from like the Disney website and such; no communication with kids. Stupidly hard to enforce, but I could understand it.

But all social media? For one thing, it's kind of ambiguous. What about e.g. video game chatrooms? Mailing lists? Does it count if he has game stats automatically posted to a website (e.g. Blizzard's WoW armory)?

Registered sex offenders and those convicted of violent crimes are not eligible for Membership.

Actually, a Terms of Use does not law make. If he is in violation of the Terms of Use Facebook can not "legally" go after him. Nor can the states (unless there is a law in that state that has not held up because of injunction). So that's actually a False statement that he can't legally use it in Any State because of the Terms of Use.

For the people saying it violates Facebook's policy for Sex Offenders to have accounts, I believe there was a federal court ruling awhile back stating Facebook couldn't ban sex offenders from using Facebook because it prohibits freedom of speech/expression on a popular social medium that's become a part of our "everyday lives".

Bullshit. Facebook is not subject to the First Amendment limitation on restricting free speech. The Bill of Rights restricts government, not private individuals or organizations.

You are correct Nilt, i had misspoken. The First Amendment is supposed to protect us from the government regarding speech issues, but Facebook is opening themselves up to a discrimination lawsuit by denying access to something that has become a part of our "everyday lives" in our society as a whole. Thanks for correcting my mistake though.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.